Sources of Law
Constitutional Law. The Constitution of the United States is the
basic and paramount law of the land. It
has priority over every other law that may conflict with it. When the United States Supreme Court held
that a constitutional right to privacy negated a state law that prohibited
abortion, it was the state law that became unenforceable, Roe v. Wade. Any federal (United States) law that conflicts with the Constitution is unenforceable. Similarly, each state has a constitution establishing
state government and guaranteeing fundamental rights within the boundaries of
that state. Any state statute or
regulation is subordinate to the state constitution.
Besides being a founding document, much of the authority of the Constitution as law derives from the fact that it was adopted by the people. Indeed, it begins with the words, "We the people . . . do ordain and establish this Constitution of the United States of America." After the Constitution was adopted by the Constitutional Convention, it was submitted to the people of the various states where it was analyzed and argued over in great detail before the people voted for it.
Besides being a founding document, much of the authority of the Constitution as law derives from the fact that it was adopted by the people. Indeed, it begins with the words, "We the people . . . do ordain and establish this Constitution of the United States of America." After the Constitution was adopted by the Constitutional Convention, it was submitted to the people of the various states where it was analyzed and argued over in great detail before the people voted for it.
Statutory
Law. Statutory law is what most of
us think of as law.
Statutes (or Acts) are the laws enacted by the legislative
authority. In the United States
government the legislative authority (according to the U.S. Constitution) rests
with the United States Congress. At the
state level, the legislative authority rests almost entirely with the state
legislature. The fountain of legislative authority flows from the citizens themselves, but legislators have been chosen by them to exercise delegated legislative power.
However, a state may also draw upon the people’s inherent and original legislative authority to legislate by referendum or by initiative. In the referendum process the legislature may draft recommended legislation and then submit it to the vote of the people at the next election. If a majority vote for the referendum, it becomes law. This is essentially the same process by which the United States Constitution became law. The people themselves may originate legislation by having a prescribed number of registered voters sign an initiative to put proposed law up for a vote of the people. The state law allowing medical use of marijuana was adopted in California by the initiative process.
However, a state may also draw upon the people’s inherent and original legislative authority to legislate by referendum or by initiative. In the referendum process the legislature may draft recommended legislation and then submit it to the vote of the people at the next election. If a majority vote for the referendum, it becomes law. This is essentially the same process by which the United States Constitution became law. The people themselves may originate legislation by having a prescribed number of registered voters sign an initiative to put proposed law up for a vote of the people. The state law allowing medical use of marijuana was adopted in California by the initiative process.
Case
Law and Common Law. Case and/or
common law is a type of law that layman usually find most baffling. Essentially, court decisions, precedents, particularly
appellate court decisions, become a part of the law. That is why lawyers (and increasingly
physicians) are alert to changes in the law brought about by court decisions. The Canterbury case linked on this site is a good example of how law may change through a court
decision. The Tarasoff
case (linked on this site) is another example of a court decision that
changed both law and medical ethics.
There are thousands of cases with published court opinions that have decided many fundamental rules of law and those case have been combed through and analyzed and reduced to basic black letter statements of case or common law. The RESTATEMENT OF TORTS published by the American Law Institute is a particularly authoritative analysis of court law, and it is common to see it cited as an authority in court opinions. Wikipedia has a short but interesting article on the Restatement series.
There are thousands of cases with published court opinions that have decided many fundamental rules of law and those case have been combed through and analyzed and reduced to basic black letter statements of case or common law. The RESTATEMENT OF TORTS published by the American Law Institute is a particularly authoritative analysis of court law, and it is common to see it cited as an authority in court opinions. Wikipedia has a short but interesting article on the Restatement series.
Administrative
Law. Rules and regulations adopted
by administrative agencies have the force of law.
In the hierarchy of law, an administrative regulation is subordinate to legislation adopted by the legislature or by initiative or referendum, just as legislation is subordinate to the constitution.
One growing danger from regulations is that they are becoming so complex and so extensive that it is difficult and costly to understand and comply with them even though a failure to comply can lead to severe penalties. Much has been heard about how massive the Affordable Care Ace (Obamacare) is, but it has been dwarfed by the regulations promulgated under it thus far.
This image shows the massive Obamacare Act on the chair and the regulations created under authority of the Act in the column of paperwork beside it.
For some issues on administrative law see this.
The following on Civil Law and common law is only a general description and not intended to be authoritative.
Physicians
In the hierarchy of law, an administrative regulation is subordinate to legislation adopted by the legislature or by initiative or referendum, just as legislation is subordinate to the constitution.
One growing danger from regulations is that they are becoming so complex and so extensive that it is difficult and costly to understand and comply with them even though a failure to comply can lead to severe penalties. Much has been heard about how massive the Affordable Care Ace (Obamacare) is, but it has been dwarfed by the regulations promulgated under it thus far.
This image shows the massive Obamacare Act on the chair and the regulations created under authority of the Act in the column of paperwork beside it.
For some issues on administrative law see this.
The following on Civil Law and common law is only a general description and not intended to be authoritative.
Legal Systems are Operating Systems for
Society
In modern
terms, a legal system can be treated as the operating system for a society.
The
comparison is not as fanciful as it first seems. Both are essentially information that
consists of a set of instructions for guiding the system. Both respond to their environments and evolve
to address new environmental challenges.
Both have problems when there are internal conflicts. In fact, both are similar to a genome in sharing
these characteristics.
Windows
and Mac are the two best known operating systems for personal computers and
Civil Law and Common Law are the principle legal systems in use in the
West. Both work in complex societies
and, like Windows and Mac, both have factions claiming one is better than the
other.
Except
for this brief introduction, this site will deal entirely with issues in the
common law system.
Common
law is better.
CIVIL LAW AND COMMON LAW
The two
major legal systems in the West are Civil Law and common law.
Civil Law
is the system of law used in Europe, Scotland, Latin America, and the Province
of Quebec in Canada and the State of Louisiana in the United States. Both Quebec and Louisiana were once French
possessions so they acquired the Civil Law system of France.
Common Law
is the system of law in England, the United States, Australia, and many former
colonies of Great Britain, including India with some modifications.
CIVIL LAW
Civil Law
is a tradition of law that arguably begins with the Twelve Tables of Rome in
about 450 B.C. that expressed and codified existing law and subsequently went
through additional codifications, most notably that of the emperor Theodosius
in 429 BC and finally the great and complex work of codification begun in 529
AD during the rule of Justinian.
It is
Justinian’s Code, now known as the Corpus Juris Civilis, that still
forms the backbone of the legal systems of Europe and Latin America.
Civil Law
is sometimes described as ‘written reason’ and consists of laws or codes
expressly adopted and updated by the legislative authority. Roughly speaking, the law is in those codes
or it isn’t anywhere.
Role
of Civil Law Judges
An important
point to be made for this course is that the role of the judges in a civil law
system is to determine the facts of the case and then apply the relevant part
of the legal to code to those facts.
Judicial interpretation of the code is somewhat restricted because
interpretation can drift into legislation and that is a role reserved for the
legislating authority.
In the
United States one sometimes hears people complain that the role of American
judges is just to hear the facts and apply the existing law instead of making
laws up as it suits them. That nicely
describes a Civil Law legal system, but things are quite different in common
law jurisdictions. In a common law system
judges do make law.
COMMON LAW
Some
understanding of the common law is particularly important to physicians because
many of the legal principles governing the medical profession have evolved in
the common law system.
The common
law originated in England and originally may have been nothing more than the
law under the king’s authority that applied to everyone, that is that part of
the law that was common to all. Some
laws that were not part of the shared law applied to very local conditions such
as a manor or a hundred.
If ever
that was sufficient to define common law, it did not last long. Hogue says that “The greater a man’s
knowledge of the law, the more hesitant he will be in answering the
question: What is the common law?” [Hogue, Arthur, Origins of Common Law].
It is not
even clear when common law began. In his
History of England, David Hume states that Alfred the Great (849 – 899)
founded the common law, others tend to look to Henry II (1133 – 1189) for the
origins of the mature common law.
Whatever
the origin, common law is judge-made law.
Basically,
common law is the law customarily applied by the courts.
The
assumption is that there is a body of unwritten legal principles that have the
force of law. In theory, common law
judges do not so much ‘make’ law as discover it and apply it to the case before
them. Whether they 'discover' law or create it is a question similar to a related question in mathematics. Do mathematicians 'discover' mathematical principles or create them? In both law and math the correct answer is probably a mix of discovery and creation.
We can see
the action of both discovering and making law in action in the case of Cantebury v. Spence [Required Reading]. The case, of course, addresses an issue on a physician's duty to obtain a patient's informed consent to a procedure versus the physician's right to exercise 'therapeutic privilege; and withhold some information from his patient.
In its Opinion, the court notes
that it has no guidance from statutes or codes to help resolve the case so it
must turn to ‘first principles’, one of which it identifies as the right of
self determination to the extent that a competent person has the right to say
what will be done with his own body.
Having that right, it follows that a person also has the right to be
given basic facts about a medical procedure before he consents to it. Going further, it also follows that a
physician must not withhold those facts from a nervous patient to keep him from
making the ‘wrong decision’. The
patient has the right to make the decision; not the doctor.
One can see
immediately how this contrasts with a Civil Law system. In Civil Law countries the judges do not make law, but in Canterbury, the court drew upon a
fundamental, but unwritten, principle to express a new rule of law. The Canterbury decision fashioned new, judge-made law
that was an interpretation and extension of a postulated fundamental principle.
The law
customarily applied by common law courts is given strength by the doctrine of stare
decisis, or ‘stand on the decision’.
As a rule it means that if a legal issue has been decided before, the
court will follow that precedent and use it again. That gives predictability to the law.
Thus,
another court confronted with a factual situation similar to that in Canterbury
will not have to resort to fundamental, unwritten principles because it can
‘stand on the decision’ reached in Canterbury. It would almost be sufficient for the court to say that ‘this
issue was decided in Canterbury and we follow that decision in the
matter before us.’
This is why
lawyers in common law legal systems are almost always citing other cases. It is because those cases are actual law.
Precedent
A case
decided by the highest tribunal of a state, typically a supreme court, will be
a mandatory precedent throughout the entire state and will be followed by all
courts in the state. A case decided by
one of the lower courts of appeal in the state will likely be a mandatory
precedent in that court’s district but only a persuasive precedent in other
districts. Sometimes different courts
of appeal in different parts of a state will reach different conclusions as to
how to resolve a legal issue and different parts of a state will have different
legal rules. Usually a conflict like
that is an invitation for the supreme court of the state to step in and enter a
decision that will bind all state courts.
The court
decisions of one state are not mandatory precedents in other states, but they
may be persuasive precedents. Thus, in
reading a court’s opinion it is not unusual for the opinion to refer to
decisions on the same issue that have been rendered in other states. Often, a court will be persuaded by the
reasoning given in the opinion in another state’s courts and will formally
adopt it as the rule of law in its own state.
The court
decisions in a common law country like the United States may serve as
persuasive precedents in other common law countries and the reverse is also
true. Thus, an American court may give
consideration to court decisions rendered in Canada, England, Australia, or
other common law countries.
Being able
to draw upon the judicial wisdom of other common law countries means that a
common law judge has a vast pool of existing law that may help form his opinion
in the case before him.
One can
almost distinguish Civil Law and common law by seeing Civil Law as an
engineering project in which the model is created in the legislature and then
applied to all, while the common law is an active evolutionary process in which
the law changes as it mutates on a case-by-case basis.
Startling
as it is for student to learn that common law is judge-made law that is
constantly evolving and can draw upon the decisions of cases in other common
law countries, it is even more of a shock to learn how old it is. Much of the common law of Olde England is
actual law in modern countries. Lest
there be any doubt, consider these laws that are in the law books:
Florida Statutes 2.01
The common and statute laws of
England which are of a general and not local nature with the exception
hereinafter mentioned, down to the 4th of July, 1776, are declared
to be of force in this state: provided the said statutes and common law be not
inconsistent with the Constitution and laws of the United States and the acts
of the legislature of this state.
New York Constitution, Art. I, Sec. 14
Such parts of the common law…as…did
for the law of said colony on the
nineteenth of April, one thousand seven hundred seventy five…shall
be and continue
the law of this state…But all such parts of the common law…as
are repugnant to this
constitution are hereby abrogated.
California Civil Code Sec. 22.2
The common law of England, so far as it is not repugnant to or inconsistent
with the Constitution of the United States, or the Constitution or laws of
this State, is the rule of decision in all the courts of this State.
Basically, what the above provisions mean is that law established before the
United States even existed are part of the body of law in the modern United
States.
The importance of that body of law can be seen in some of the opinions of the
United States Supreme Court when it draws upon the works of Glanville (1188),
Bracton (1235) and Blackstone (1766) to elucidate or provide authority for its
reasoning.
Physicians
As a practical matter for physicians, it is very unlikely
that the ancient elements of common law will have much significance. However, here are things that a physician
needs to know:
1. A physician
should know that the law passed by the legislature does not define all
of a physician’s legal role and responsibilities in a community. Much of his legal role will have been
created in the courts. That is why
knowing rules established by courts can be important. Notice that the AMA News and, particularly, the AMA Code of
Medical Ethics often refer to specific court cases by name.
2. A physician
should know that even in the absence of a legislative statute and a court
precedent, a physician may find himself under obligations imposed by unwritten
law that are given force by a court.
That is what happened in Canterbury when the court set a new rule
on therapeutic privilege in medical practice.
It also happened in California in the Tarasoff case in which the
court first identified a duty for a therapist to warn and then, or
reconsideration, protect a third party who is in imminent risk of harm from a
patient even if that requires that the therapist ignore his usual obligation to
protect patient confidences.
3. A physician
should know that a court case in another state, or even another country, may be
used to establish new, judge-made law in his own state. Thus, if the courts and legislature of his
state have not yet settled the confidentiality issue in a Tarasoff type
situation, if the courts get such a case they may draw upon California’s Tarasoff
case and make it the law binding all practitioners in his state.
